Is It Really So Wrong to Get Searched at a Protest?

July 20, 2004

Barring police from conducting general searches of protesters’ possessions at the Republican convention defies “common sense,” New York City Mayor Michael Bloomberg declared this week. He slammed the July 16 federal court decision, which constrains the police, for ignoring the possibility that terrorists may just time their long-dreaded next strike for, say, when the president of the United States is in town. City lawyers are crafting an appeal.

Much as a fan of personal rights hates to admit it, the mayor does not seem to have strayed outside the realm of reason on the terrorism thought. And the Fourth Amendment, upon which Judge Robert Sweet based his ruling, protects people only against “unreasonable” searches.

So did the city just run into a horribly liberal judge, who will be overturned with a thud on appeal? Not so fast. There is the First Amendment, too.

That’s the one that protects “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Interpretation of that amendment among judges, Supreme Court justices, and law professors is incredibly varied and murky – but one place where it is basically believed to be king is the arena of political protest. It is the amendment that explains why the same person in the same place (say, Madison Square Garden) enjoys greater constitutional rights in the context of a convention protest than of a Prince concert.

Consider, then, some of the facts before Judge Sweet as he faced the daunting possibility of being the guy whose court order let a backpack filled with bombs slip through the barricades.

“As of October 2001, the NYPD had instituted a policy in the Manhattan South Borough Command of requiring people seeking to attend certain demonstrations to consent to a search of their possessions,” reads one finding of the decision. Emphasis is added here on two phrases, which together seem to create not just an oxymoron (requiring consent), but also an instance where a tactic that may be reasonable under the Fourth Amendment alone seems unsavory considering the First. (Constitutional historians note that the Fourth Amendment’s search-and-seizure protections actually originated in colonial Americans’ fear of persecution by agents of the English crown. Politics is as old as mud.)

The problem appeared more blunt later in the decision: “If [the protesters] did not consent to the search, they would not be allowed into the event.” That doesn’t look like freedom of speech or assembly.

Can’t the police be more reasonable than that?

In fact, Judge Sweet ruled, the police may freely use metal detectors at the entry points to convention protest sites. Such external screens will avoid the invasiveness of Officer Joe Blow’s rifling through Jane Activist’s purse.

And if the NYPD makes a factual showing—something to flesh out the mayor’s “common sense”—suggesting a real risk to public safety that can be reduced by a blanket bag search, the judge doesn’t think that the tactic would be unreasonable at all.